IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BENJAMIN HENDRICKS, 

 

 Plaintiff, 

 

 vs. Case No. 2:11-cv-938 

 Magistrate Judge King 

TOBBI REEVES-VALENTINE, et al., 

 

 Defendants. 

OPINION AND ORDER 

 Plaintiff Benjamin Hendricks, a state inmate incarcerated at the 

Frazier Health Center of the Pickaway Correctional Institution 

(“PCI”), brings this action against Tobbi Reeves-Valentine 

(“defendant”), identified as the “Health Care Administrator (or 

Medical Operations Manager” at PCI, Complaint, Doc. No. 5, ¶ 10,1

 under 

42 U.S.C. § 1983. Plaintiff alleges that defendant acted with 

deliberate indifference to his medical needs in violation of the 

Eighth Amendment to the United States Constitution. This matter is 

before the Court, with the consent of the parties pursuant to 28 

U.S.C. § 636(c), for consideration of defendant’s Motion for Summary 

Judgment (“Defendant’s Motion”), Doc. No. 26. Plaintiff opposes 

 

1 Plaintiff also includes as defendants 25 unnamed John and Jane Doe 

defendants. However, service of process has not been made on the unnamed 

John and Jane Doe defendants within the 120 days required by Fed. R. Civ. P. 

4(m). Moreover, it would appear that any attempt to now join a new party 

would be untimely. See Fed. R. Civ. P. 15(c)(1). See also Cox v. Treadway, 

75 F.3d 230, 240 (6th Cir. 1996)(“Substituting a named defendant for a ‘John 

Doe’ defendant is considered a change in parties, not a mere substitution of 

parties.”). The Court therefore regards defendant Reeves-Valentine as the 

only defendant in this action. 

Case: 2:11-cv-00938-NMK Doc #: 37 Filed: 02/15/13 Page: 1 of 9 PAGEID #: <pageID>
2 

Defendant’s Motion. Plaintiff’s Response in Opposition to Defendant’s 

Motion for Summary Judgment (“Plaintiff’s Response”), Doc. No. 29. 

Defendant has filed a reply. Defendant’s Reply Brief to Plaintiff’s 

Response in Opposition to Defendant’s Motion for Summary Judgment

(“Defendant’s Reply”), Doc. No. 32. Plaintiff, after being granted 

leave, filed a sur-reply, Plaintiff’s Sur-reply, Doc. No. 35, to which 

defendant has filed a response. Defendant’s Response to Plaintiff’s 

Sur-Reply, Doc. No. 36. This matter is now ripe for consideration. 

For the reasons that follow, Defendant’s Motion is GRANTED. 

I. Background 

 Plaintiff alleges that he suffers from Crohn’s disease and that, 

as a result, he has undergone an ileostomy and must use an ostomy 

device or pouch. Complaint, ¶¶ 14-16. A specific ostomy device and 

associated supplies, i.e., colostomy bag, part number 401932, and 

wafer, part number 125262, Plaintiff’s Response, p. 15, were 

prescribed for him by a physician in September 2010. Id.; Complaint,

¶ 17. However, plaintiff was denied those supplies for “about a six 

week period between January-February 2011.” Complaint, ¶ 18. 

Instead, plaintiff alleges, he was provided supplies designed for a 

urostomy. Plaintiff’s Response, pp. 2, 10.2

 

Plaintiff complained to defendant, who initially insisted that 

the necessary supplies were “readily available.” Complaint, ¶¶ 19-23. 

On February 11, 2012, defendant confirmed that the supplies were not 

in fact available “and a rush order was placed . . . .” Id. at ¶ 24. 

 

2 A urostomy bag is designed to catch and hold the discharge of urine; 

plaintiff was prescribed supplies for an ileostomy, which are designed to 

catch and hold the discharge of fecal matter. Plaintiff’s Response, p. 2. 

Case: 2:11-cv-00938-NMK Doc #: 37 Filed: 02/15/13 Page: 2 of 9 PAGEID #: <pageID>
3 

Plaintiff again received the proper supplies beginning on February 15, 

2011. Id. at ¶ 25. 

The Complaint alleges that proper ostomy supplies are “vital to 

plaintiff’s activities of daily living.” Id. at ¶ 2. Defendant, 

plaintiff alleges, “acted in a manner that no objectively reasonable 

government and/or medical employee would have acted.” Id. at ¶ 27. 

Plaintiff seeks declaratory and monetary relief. Id. at PAGEID# 32. 

In Defendant’s Motion, defendant argues that plaintiff has failed 

to allege or establish either injury or deliberate indifference on her 

part. 

II. STANDARD 

 The standard for summary judgment is well established. This 

standard is found in Rule 56 of the Federal Rules of Civil Procedure, 

which provides in pertinent part: 

The judgment sought shall be rendered if the pleadings, 

discovery and disclosure materials on file, and any 

affidavits show that there is no genuine issue as to any 

material fact and that the movant is entitled to judgment 

as a matter of law. 

 

Fed. R. Civ. P. 56(c). Pursuant to Rule 56(c), summary judgment is 

appropriate if “there is no genuine issue as to any material fact.” 

Id. In making this determination, the evidence “must be viewed in the 

light most favorable” to the non-moving party. Adickes v. S.H. Kress 

& Co., 398 U.S. 144, 157 (1970). Summary judgment will not lie if the 

dispute about a material fact is genuine, “that is, if the evidence is 

such that a reasonable jury could return a verdict for the non-moving 

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

However, summary judgment is appropriate if the opposing party “fails 

Case: 2:11-cv-00938-NMK Doc #: 37 Filed: 02/15/13 Page: 3 of 9 PAGEID #: <pageID>
4 

to make a showing sufficient to establish the existence of an element 

essential to that party’s case, and on which that party will bear the 

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 

322 (1986). The “mere existence of a scintilla of evidence in support 

of the [opposing party’s] position will be insufficient; there must be 

evidence on which the jury could reasonably find for the [opposing 

party].” Anderson, 477 U.S. at 252. 

 The “party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions” of the record which 

demonstrate “the absence of a genuine issue of material fact.” 

Celotex Corp., 477 U.S. at 323. The burden then shifts to the 

nonmoving party who “must set forth specific facts showing that there 

is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting 

Fed. R. Civ. P. 56(e)). “Once the moving party has proved that no 

material facts exist, the non-moving party must do more than raise a 

metaphysical or conjectural doubt about issues requiring resolution at 

trial.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th 

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986)). 

III. DISCUSSION

Section 1983 provides in relevant part: 

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or 

the District of Columbia, subjects, or causes to be 

subjected, any citizen of the United States or other person 

within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured 

Case: 2:11-cv-00938-NMK Doc #: 37 Filed: 02/15/13 Page: 4 of 9 PAGEID #: <pageID>
5 

in an action at law, suit in equity, or other proper 

proceeding for redress . . . . 

42 U.S.C. § 1983. A prima facie case under § 1983 requires evidence 

of (1) conduct by an individual acting under color of state law, and 

(2) the deprivation of a right secured by the Constitution or laws of 

the United States. Day v. Wayne Cnty. Bd. of Auditors, 749 F.2d 1199, 

1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535 

(1981)). Section 1983 merely provides a vehicle for enforcing 

individual rights found elsewhere and does not itself establish any 

substantive rights. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285 

(2002). 

In the case presently before the Court, plaintiff alleges that 

defendant acted with deliberate indifference to his medical needs in 

violation of the Eighth Amendment to the United States Constitution. 

See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). A claim of 

deliberate indifference to an inmate’s serious medical needs includes 

both an objective and a subjective component. The objective component 

requires a plaintiff to show the existence of a “sufficiently serious” 

medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The 

subjective component requires a plaintiff to “allege facts which, if 

true, would show that the official being sued subjectively perceived 

facts from which to infer substantial risk to the prisoner, that he 

did in fact draw the inference, and that he then disregarded that 

risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing 

Farmer, 511 U.S. at 837). However, “a plaintiff need not show that 

the official acted ‘for the very purpose of causing harm or with 

knowledge that harm will result.’” Id. (quoting Farmer, 511 U.S. at 

Case: 2:11-cv-00938-NMK Doc #: 37 Filed: 02/15/13 Page: 5 of 9 PAGEID #: <pageID>
6 

835). “Instead, ‘deliberate indifference to a substantial risk of 

serious harm to a prisoner is the equivalent of recklessly 

disregarding that risk.’” Id. (quoting Farmer, 511 U.S. at 836). 

 “A serious medical need is ‘one that has been diagnosed by a 

physician as mandating treatment or one that is so obvious that even a 

lay person would easily recognize the necessity for a doctor's 

attention.’” McCarthy v. Place, 313 F. App’x 810, 814 (6th Cir. 2008) 

(quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)). “A 

plaintiff may establish the serious medical needs requirement in one 

of two ways.” Blosser v. Gilbert, 422 F. App’x 453, 460 (6th Cir. 

2011). First, for obvious medical needs left completely untreated, 

“the delay alone in providing medical care creates a substantial risk 

of serious harm.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 897 

(6th Cir. 2004). Second, where a “̔deliberate indifference’ claim is 

based on the prison's failure to treat a condition adequately, or 

where the prisoner's affliction is seemingly minor or non-obvious,” a 

plaintiff must “place verifying medical evidence in the record to 

establish the detrimental effect of the delay in medical treatment.” 

Blackmore, 390 F.3d at 898 (citing Napier v. Madison Cnty., 238 F.3d 

739, 742 (6th Cir. 2001). See also Blosser, 422 F. App’x at 460. The 

requirement of verifying medical evidence “ensures an accurate 

appraisal of whether the ‘alleged deprivation is sufficiently 

serious.’” Cain v. Irwin, 286 F. App’x 920, 926 (6th Cir. 2008) 

(quotations omitted) (quoting Napier, 238 F.3d at 742)). 

 Plaintiff’s claim falls within the second category, despite his 

arguments to the contrary. Plaintiff argues that his need for the 

Case: 2:11-cv-00938-NMK Doc #: 37 Filed: 02/15/13 Page: 6 of 9 PAGEID #: <pageID>
7 

specifically “prescribed ostomy supplies w[as] so obvious that the 

delay alone in receiving them created a substantial risk of serious 

harm.” Plaintiff’s Response, p. 7. The “obviousness standard” that 

plaintiff seeks to invoke “refers to a doctor’s attention, and thus is 

primarily applicable to claims of denial or delay of any medical 

treatment rather than claims that a plaintiff was denied or delayed in 

receiving a specific type of medical treatment.” Blosser, 422 F. 

App’x at 460 (citations omitted) (emphasis in original). Plaintiff 

alleges that he received the wrong ostomy supplies for a period of six 

weeks; he does not argue that his medical needs were entirely unmet or 

that the care actually provided amounted to no care at all. Thus, 

plaintiff’s claim is that defendant failed to treat his condition 

adequately; under this circumstance, plaintiff must, in order to 

succeed on his claim, provide verifying medical evidence of the 

detrimental effect of the delay in proper medical treatment. See id. 

(citing Blackmore, 390 F.3d at 898). 

 Plaintiff has not provided any such evidence. In fact, plaintiff 

does not even allege that he suffered an injury as a result of his 

receipt of improper ostomy supplies.3

 Furthermore, there is no 

evidence that plaintiff did not or could not use the supplies actually 

provided, see Plaintiff’s Response, p. 17 (“[Plaintiff] acknowledged 

that he understood the situation and appreciated my work on the 

matter, and agreed to work with current situation until the new bags 

arrived.”), and plaintiff concedes that, during the relevant period, 

 

3

Plaintiff refers to a “skin-sensitivity issue,” but it appears that the 

condition was “exacerbated” by “Stevens-Johnson syndrome,” not by his receipt 

of the wrong ostomy supplies. Complaint, ¶ 17; Plaintiff’s Sur-reply, p. 2. 

Case: 2:11-cv-00938-NMK Doc #: 37 Filed: 02/15/13 Page: 7 of 9 PAGEID #: <pageID>
8 

he “was in a hospital-like setting” and “would merely ask for 

assistance” “when he did have problems with leaks [and] cleaning.” 

Plaintiff’s Sur-reply, p. 3. Plaintiff did not complain of pain 

during his February 9, 2011 monthly assessment. See Plaintiff’s 

Response, p. 17.4

 

 Although a deliberate indifference claim does not require actual 

harm, see Blackmore, 390 F.3d at 899 (quoting Farmer, 511 U.S. at 

827), where, as here, the claim is based on the prison’s failure to 

treat a condition adequately, verifying medical evidence of actual 

harm “ensures an accurate appraisal of whether the ‘alleged 

deprivation is sufficiently serious.’” Cain, 286 F. App’x at 926 

(quoting Napier, 238 F.3d at 742). Plaintiff’s failure to produce 

such evidence demonstrates that no “substantial risk of serious harm” 

existed. 

 Furthermore, plaintiff has failed to adduce evidence that 

defendant deliberately or recklessly disregarded a known risk of 

injury to plaintiff by reason of the delay in providing the proper 

ostomy supplies. The evidence establishes that defendant responded to 

plaintiff’s complaints. Complaint, ¶¶ 19-23. Although she was 

mistaken in her belief that the supplies were readily available, 

mistake or even negligence on the part of a prison official is not 

tantamount to deliberate indifference. See Estelle, supra, 429 U.S. 

at 106. 

 

4

 Plaintiff does contend in his response to Defendant’s Motion, but did not 

allege in the Complaint, that he was unable to keep a surgical consultation 

in connection with a hernia condition because he did not have the proper 

supplies. Plaintiff’s Response, pp. 5-6, 11. Plaintiff does not allege any 

medical complications as a result, however. 

Case: 2:11-cv-00938-NMK Doc #: 37 Filed: 02/15/13 Page: 8 of 9 PAGEID #: <pageID>
9 

 For both these reasons, the Court concludes that defendant is 

entitled to summary judgment on plaintiff’s deliberate indifference 

claim. 

WHEREUPON, Defendant’s Motion for Summary Judgment, Doc. No. 26, 

is GRANTED. The Clerk shall enter FINAL JUDGMENT in favor of 

defendant. 

 

February 15, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

Case: 2:11-cv-00938-NMK Doc #: 37 Filed: 02/15/13 Page: 9 of 9 PAGEID #: <pageID>